This is a reference to us under Section 66 of the Indian Income-tax Act on behalf of an assessee in respect of the assessment on him for the year 1941-42 arising out of the accounting period ending with the 31st March, 1941.
The facts are that the assessee is a holder of a certain land in the Gorakhpur district. It appears that on this land there are, and have been for many years, a number of forest trees, khar and wild plants. The Income-tax Officer, in making his assessment in the year in question, included a net sum of Rs. 5,394 in respect of the income derived by the assessee in the accounting year from the sale of timber from his zamindari property. It is out of this assessment that this reference to us has been made.
In the statement of the case to us the Tribunal has set out the facts with some care. It has to be borne in mind that the question of law at issue was whether under Section 2 (1) (a) of the Indian Income-tax Act the gain derived by the assessee from the sale of the timber mentioned above was entitled to exemption from taxation on the ground that it was agricultural income, that is to say income 'derived from..... land which is used for agricultural purposes by agriculture.....' It has to be observed, therefore, that in order to qualify as 'agricultural income' the income has not only to be derived from land which is used for 'agricultural purposes' but that such income has to be derived by the process of 'agriculture.' Reverting now to the statement of the case, we find that the Tribunal has given us as a fact that there is no evidence on the record showing that the growth of the trees in question was the result in this case of any actual cultivation by the assessee at all. They have said that the various trees which he sold were of spontaneous growth and they have summed up their conclusion in paragraph 11 of the case by saying that 'the Bench.... came to a finding that the trees were of spontaneous growth, not having grown as a result of actual cultivation.' This follows their own judgment of the 28th January, 1943, in which they say precisely the same thing.
We are bound to accept the facts given us by the Tribunal and we have no jurisdiction to reopen those facts and to entertain conclusions of fact differing from those of the Tribunal itself. The Tribunal has made it even more clear by the form of question which they have set us that it is based entirely on a factual supposition that the trees in this case are of spontaneous growth, growing on the land naturally without intervention of any human agency. The question is in this form :-
'Whether income from the sale of forest trees of spontaneous growth, growing on land naturally and without the intervention of human agency, even if the land is subject to a local rate (assessed and collected by the officers of the Crown as such) is agricultural income within the meaning of Section 2 (1) (a) of the Income-tax Act, and as such exempt from income-tax under Section 4 (3) (viii) of the Act ?'
Put in that form, there can in out view be only one possible answer to this questions and that is the answer which the Tribunal itself has given. We do not feel disposed to discuss this at any great length since in our judgment it is a matter which admits neither of doubt nor argument. We are entirely satisfied that, being trees of spontaneous growth, to the production of which the assessee has made no contribution by way of cultivation, no question can arise either of the land on which they grew being 'used for agricultural purposes' or of the trees themselves and the income they produced being the result of 'agriculture.'
We notice, so that it may not be said we have overlooked them, two points which have been raised by the assessee. The first point is that in a previous year, the year 1939-40, an assessment was made on the assessee and in that assessment nothing in respect of the income derived from the sale of timber growing on the same land was included. Indeed, there was a finding in respect of that year by the Income-tax Officer that it was agricultural income and as such was not taxable. In our judgment that has no relevance whatever to the question before us. We are not bound by the finding of any Income-tax Officer in any previous year, nor has that finding any significance whatever as regards the character of the income in the year with which we are dealing. The only other point to be mentioned is that the assessee has contended that the finding at which the Tribunal has arrived is manifestly contrary to the evidence on the record. All that he really means, as far as we can see, is that the assessee has filed certain affidavits in which he has alleged as a fact that he has actually cultivated the land by growing trees for a number of years. The Tribunal on the other hand has said that it has been carefully through all the evidence on the record and that it has critically examined all the records and it can find no trace whatever of any cultivation at all which has produced or contributed to the producing of these trees. It is a circumstances not without significance that the hearing before the Tribunal was an ex parte hearing. The assessee did not appear on the date fixed but made an application for a postponement, which after due consideration was refused by the Tribunal. We have no reason to suppose that that refusal was not without good reason. In spite of it the Tribunal investigated the facts with care and in due course they reached the finding of fact which we have mentioned above. In substance what the assessee is now seeking to do is to reopen those questions of fact and to have them tried again. That we are not willing to do. All we are willing to do is to answer the question put to us on the facts which have already been found.
In those circumstances our answer to the question put to us must be in the negative.
The Department is entitled to its costs and we assess the fee of the Departments Advocate at the sum of a hundred and fifty rupees. He will have six weeks in which to file a certificate.
Reference answered in the negative.